Archive for the ‘Supreme Court’ Category

Justice Antonin Scalia passed away last weekend at the age of 79. His conservative view of the Constitution resulted in Progressives demonizing him. Irrespective of this, Scalia, a graduate of Harvard Law School, was an eminent Constitutional scholar, believing in a strict interpretation of this document.

Almost immediately Scalia’s death became a political issue. President Obama wasted no time announcing he would nominate a replacement. Not to be outdone by this precipitous move, Republicans announced they wouldn’t even consider an Obama nominee, stating that they should be left to the next president.

Republicans in the Senate have the numbers and ability to keep an Obama nominee from being confirmed. It is therefore hard to imagine why they would respond so ineptly to the Obama challenge.

Obama and his Leftist allies claim foul of the Republicans obstructionist behavior. However, it was not too long ago when then Senator Obama took a similar approach with the George W. Bush nominee, Alito. When confronted with this duplicative behavior at a recent press conference, Obama responded with a rather comical two-step stating (video posted below): “I think what’s fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party. This has become just one more extension of politics. ….” Translation, the Democrats current whining is but crocodile tears.

Irrespective of the current political maneuvering, Antonin Scalia will go down in history as a legal scholar and fine jurist. In honor of the man, we post some of his memorable quotes below.

Constitution – “That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.” (National Review)

Bill of Rights – A Bill of Rights that means what the majority wants it to mean is worthless. (Star-Telegram)

Death Penalty – This is an execution, not surgery. Where does that come from, that you must find the method of execution that causes the least pain? We have approved electrocution. We have approved death by firing squad. (Student News Daily)

2nd Amendment – Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct. (ABC News)

Appointed Judges – As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically. (LA Times)

Democracy – Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society. (New York Times)

Good Judge – If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong. (Romper)

This week Supreme Court Justice Ruth Bader Ginsburg underwent surgery for a coronary blockage. This was not the Justice’s first bout of serious health issues. In 1999 Ginsberg had surgery for colon cancer. Ten years later in 2009 she had surgery for pancreatic cancer.

This Blog wishes Ms. Ginsberg a speedy recovery. At the same time it is hard to imagine that the 81-year-old Justice can effectively carry out her duties. Giving her advanced age and in health issues, both her physical and mental prowess must be diminished.

Many politicians and public servants enter the field to serve the People. At the same time too many seem to believe that once elected or appointed that they have the right to the job for life, irrespective of their capabilities.

Serving in government should be what it was once was considered, public service. That was the philosophy envisioned by Founding Fathers. The many who stay too long and make this a lifestyle demonstrate that is no longer is a public service, but has instead become a career path. This has lead to the creation of an elitist ruling class whose focus is often on power or personal enrichment instead of service.

Supreme Court Justices are appointed by our presidents and are given lifelong tenure. The logic behind this tenure was in the effort to keep the Court from being politicized. Unfortunately, that has not been the result.

For at least recent decades, sitting Justices of the Supreme Court have been divided into two main groups, the liberal and conservative wings. They often vote as a block that results in many fairly evenly split decisions. This reality is evidence of a politicized court that makes decisions based on biases in interpreting the law, rather than objective interpretations of it or the Constitution.

In addition, the lifelong tenure for Justices results in decisions being made by legal minds that are often long pass their prime. For example, former Justice Jon Paul Stevens stepped down from the Court in 2010 at the age of 90. While Stevens may have been sharp for his age, it is reasonable to conclude that his last years in the Court were hindered by declining capabilities.

Currently, the Court’s oldest Justice is Ruth Bader Ginsburg who is 81 years old. In addition, Ginsburg has had serious and ongoing health issues including two bouts with cancer. Again, it is reasonable to conclude that her intellectual capabilities have been declining. However, during a recent interview Ginsburg said: “I do know that once I feel I am slipping, I will not stay here, because this is a very hard job. But that time, thank goodness, has not yet come.” With all due respect Ms. Ginsburg is not capable of making that call.

Progressives like former Justice Stevens and current Justice Ginsburg take the view that the Constitution needs to be a dynamic document, especially with changes in society. Taking such a view seems in conflict with remaining on the Court so late in life when their own values have been so ingrained.

On June 29 this Blog posted an article “Supreme Court Finds Obamacare is a Tax“. Today Jim Mahoney posted a comment on that article which is worthy being placed upfront on this Blog and is included below.

While Jim makes various good points on Chief Justice Robert’s decision, perhaps the most significant relates to the possibility that news media pressure played a role in Robert’s ruling when Mahoney states: If the story coming out of CBS is true it is even more tragic that Roberts changed his vote based on the negative press being thrown at him by Obama and the media. We have now established that the Chief Justice can be blackmailed by the press.

Barring a significant rout by Republicans in November, Obamacare will remain the law of the land and significantly impact American society for years to come. It is difficult to predict the specific consequences of governmental meddling in markets. However, history has shown that the larger and more significant the legislation, the more significant the consequences. Unfortunately, the lion share of such consequences are negative and worse than the ill that the legislation is purported to address.

Some Thoughts Chief Justice Roberts and Obamacare, by Jim Mahoney

This morning I heard someone on the radio marveling at the fact that Chief Justice John Roberts was playing Chess when everyone else was playing Checkers. I would simply reply that sometimes the game people are playing actually is Checkers and it doesn’t pay to over-think the situation. We were on the verge of having the entire Obamacare bill declared unconstitutional and Roberts snatched defeat from the jaws of victory. If the story coming out of CBS is true it is even more tragic that Roberts changed his vote based on the negative press being thrown at him by Obama and the media. We have now established that the Chief Justice can be blackmailed by the press.

Some conservative commentators are looking for a silver lining by saying that the Roberts opinion has narrowed the ability of the Left to use the Commerce Clause in a future. This is also untrue. As Mark Levin noted last week, Supreme Court precedents, as well as challenges to decisions, are determined by what is referred to as “The Opinion of the Court”. Simply stated, when the majority of Justices agree on a position, the decision is written as being the opinion of the Court. In the case of this most recent opinion on the Commerce Clause, Roberts wrote the opinion under his name alone. So even though the four originalists on the Court held the same opinion, it was not described as the opinion of the Court. So, Roberts has given us the worst of both worlds. He has established legal precedent for the government to tax us on anything they want and failed to establish the precedent of narrowing the use of the Commerce Clause by his poorly written opinion.

I have even heard someone say that the silver lining is that Roberts is in effect telling us that elections matter so that conservatives will be energized to beat Obama in November. Who in their right mind would have wanted to come to this? So we are now put in the position of electing Mitt Romney and majorities in the House and Senate in order to have a ghost of a chance of overturning this monstrosity. If we are indeed playing chess, Roberts has left us with only a single move this November to prevent checkmate.

In a remarkable show of audacity, narcissism and/or disdain for the three independent branches of American government, President Obama once again attacked Supreme Court’s its authority. His first attack came during a State of the Union Address when he publicly rebuked the Supreme Court for one of its decisions.

ABC News has reported that during a White House press conference on Monday, Obama questioned the Supreme Court’s authority relating to Obamacare stating that it would be “an unprecedented and extraordinary step” to overturn his prized legislation passed by “a democratically elected Congress.” He went on to state that he believed it would be “….or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and — and passed law.”

For a president who was presented as an expert on Constitutional law, his foray into the Supreme Court’s Constitutional power is either a sign of ignorance or lust for power. The Constitution specifically gives independent and specific powers to each of three branches of government as checks and balances against any one branch usurping power it was not granted under the Constitution. Further, it is the Supreme Court’s specific duty to overturn laws created by the Congress should it find those laws to be unconstitutional.

The negative responses to the President’s inappropriate comments have been strong since Obama is treading on dangerous grounds. In an unusual step for a federal judge, Judge Jerry Smith of the 5th Circuit U.S. Court of Appeals demanded a response from the Administration on this issue. During a case involving the federal government, Smith took a Justice Department lawyer to task on the President’s comments demanding of the Justice Department:

“I would like to have from you by noon on Thursday … a letter stating what is the position of the Attorney General in the Department of Justice in regard to the recent statements by the President – stating specifically, and in detailed reference to those statements, what the authority is in the federal courts in this regard in terms of judicial review.”

Judge Smith also asked: “Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?” This question is so obvious that the fact that he needs even be raised brings into question Obama’s understanding of the Constitution. The American people deserve a straightforward answer on this issue. However, given this President’s unwillingness to answer to the American people in the past and the mainstream media’s acquiescent to any action that he takes, any substantive response is not likely.

Supreme Court Justice Ruth Bader Ginsburg earlier this month visited Egypt on a trip paid for by the US State Department. While it is curious that Ginsburg went on State Department’s dime, some of her statements bordered on provocative, if not downright damaging to America’s interests.

During the Egyptian trip, Justice Ginsburg was interviewed by Egyptian Alhayat TV with the video being was posted by the US Embassy in Cairo. During the interview, portion included below, Ginsburg was asked approximately 2 minutes 13 seconds into the clip if she thought the Egyptians should use constitutions from other countries as models for their own that is to be drafted. Her answer was shocking, suggesting that Egypt should be “aided by all Constitution-writing that has gone on since the end of World War II.” Then in a seeming attempt to ensure that Egyptians understood that the American Constitution was written prior to World War II, she stated:

“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution.” She then went on to also praise some of the legal work in Canada and Europe.

By pointing to only constitutions developed after World War II, Ms. Ginsburg demonstrated technical Progressive narcissism. To them, legal philosophies that predate their new world order are frowned upon. The fact that Ginsburg was willing to openly state such negative views of the U.S. Constitution, especially during a visit to an Arab country in turmoil, indicates the extent of her disdained for a document she has sworn to uphold.

Ginsburg’s Cairo statements were honest, although a frightening look into the minds of Progressive elitists. To these Progressives, the Constitution is an annoyance that gets in the way of promoting their Progressive agendas. This view makes it impossible for judges like Ginsburg to uphold the Constitution in a way that the framers envisioned. In fact, these activists Judges have in essence created a fourth branch of the US government that pursue advocacy rather than upholding the Constitution.

Ruth Bader Ginsburg embarrassed herself and the United States in the Cairo interview. Her radical statements demand that she resign her position on the Supreme Court.

Who can forget the spectacle that became the lynching of Clarence Thomas during his confirmation hearings for Supreme Court Justice? During the hearings, instead of focusing on Thomas’s knowledge and interpretation of the law, the Left marched out Anita Hill who complained about a “pubic hair” joke Thomas
supposedly made in her presence. While this type of humor troubled Ms. Hill enough that she attempted to derail his nomination, she still followed Thomas to his next position. That dichotomy is of no concern to the Left where boorish behavior becomes illegal only when it suits their political agendas. While Ms. Hills’s and the Left’s attack did not stop Thomas from being confirmed to the Court, the Left has not given up on getting this man of color who dares buck Leftists’ causes. They are at it again through one of the Left’s media outlet, the New York Times, who posted the “Breaking News Alert” below.

The first two paragraphs of what the Times passes for “breaking news” clearly infers some unethical behavior on Thomas’s part, although it does not back the
innuendos up with facts. But, the last paragraph says it all: “Although the Supreme Court is not bound by the code, justices have said they adhere to it.” The Times
is now taking up the Leftist assault on Thomas that began with Anita Hill.

The Left has served notice, loud and clear, that should one have the audacity to harbor conservative beliefs and be a person of color, be prepared for special treatment from Progressives. The same is true women and people of religion. But in the end it is not so special, just dirty politics.

In May 2009, Obama mentor and Harvard Law Professor, Laurence Tribe, wrote to the President about his upcoming choice of Sonia Sotomayor for a Supreme Court Justice to replace retiring Justice David Souter. The letter was recently released and has gone viral on Internet for obvious reasons. Below is a link to Tribe’s letter.

The letter is as remarkable as it is presumptuous. Tribe, one of Obama’s Harvard Law professors, told the President of the Sotomayor choice: “Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the Roberts/Alito/Scalia/Thomas wing of the Court“. Those words are certainly not an endorsement of Obama’s first Justice added to the Supreme Court. History will be the ultimate judge as to whether Tribe or Obama had the proper take on Sotomayor.

After taking Obama to task over his Sotomayor choice, Tribe then concluded the letter by asking the President to create a new position in the Department of Justice that might suite Tribe’s skills. Wow, it takes a special type of elitist to think as highly of himself as Laurence Tribe!

Some 20 years ago Clarence Thomas was nominated and confirmed as to the U.S. Supreme Court. The memorable part of his confirmation process was the accusation by an associate, Anita Hill, that Thomas sexually harassed Hill during her employment with Thomas. It turned into a “he says, she says” issue with Conservatives believing Hill to be a liar and Liberals and feminists seeing her as a hero.

This Blog has doubts about the veracity of Ms. Hill’s claims against Thomas since she followed him from a post in the Department of Education to position in the Equal Employment Opportunity Commission (EEOC). Following a supposed pervert to a new job is not typical behavior for a well-educated and easily employable person like Ms. Hill. In addition, Hill is currently a professor of social policy, law and women’s studies at Brandeis. Her political persuasions are clearly adversarial to Thomas’s.

The New York Times has reported a new twist to this story. Justice Thomas’s wife recently called Ms. Hill, seeking an apology. Ms. Hill recently released this message:

“Good morning Anita Hill, it’s Ginni Thomas. I just wanted to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometimes and some full explanation of why you did what you did with my husband. So give it some thought. And certainly pray about this and hope that one day you will help us understand why you did what you did. OK, have a good day.”

The response from Ms. Hill was curious, giving the tape to the Brandeis campus police with a request to also give it to the FBI. Why would Hill take a request for an apology that included no hint of threat from a person who did it in a way that could be traced and ask that it be turned over to the FBI? Her behavior is at best bizarre and adds to the suspicion that Hill’s attack on Thomas some twenty years ago was politically motivated.

While attention in the Senate’s confirmation hearings for Supreme Court nominee Elena Kagan focuses on her legal and political philosophies, one issue is being brushed aside: the natural corruption that envelopes most that go to Washington. In this case, Ms. Kagan has done an about-face on strong beliefs she publicized prior to her nomination.

In 1995 while a law professor in Chicago, Kagan attacked the Supreme Court confirmation process as “vapid and hollow charade”, further calling the process “official lovefests.” She embellished these views further by also stating:

“Senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.”

“The Senate’s consideration of a nominee, and particularly the Senate’s confirmation hearings, ought to focus on substantive issues.”

“The Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the court should do and how she would affect its conduct.”

“The critical inquiry … concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution.”

No matter what ones political views are, Kagan’s frank 1995 assessment was refreshing and correct. Unfortunately, since being nominate for the High Court, Kagan’s honesty has taken a back seat in her effort to obtain the judgeship.

During the Senate hearings Kagan refused to respond in substance to questions relating to her views on terrorist rights, gun ownership rights and abortion. When Senators questioned Kagan about her refusal to answer the questions in light of her 1995 comments, she responded by: “I think that that was wrong. I think that – in particular, that it wouldn’t be appropriate for me to talk about what I think about past cases – you know, to grade cases – because those cases themselves might again come before the court.”

Kagan’s explanation for her morphed beliefs leads to one of two conclusions: Either her legal opinions are unstable or she has come to a new conclusion due to political expediency. Neither is comforting, although political expediency and Washington double-talk is the likely reason.

While the White House defended Kagan’s posturing, calling her “open and forthcoming”, their good comrade Arlen Specter cut off Ms. Kagan complaining that “I don’t think I’m making too much progress.”

While Kagan may be qualified to be a Supreme Court Justice, she has shown th weakness of lack of principle. Her willingness to subvert convictions in exchange for power is the unfortunate norm in Washington. Politicians and judges are no longer the public servants our founders envisioned for us. Instead, they have become a privileged class that plumbers the Nation’s wealth and tramples on our Constitution. Those surprised by the rise in the Tea Party movement need look no further for the reasons.